*1 rel., CLARK, ex MEDICAL UNIVERSITY OF COUNTY UPCHURCH, CENTER, Appellant, A v. KIMBERLY Through Minor, IMELDA MARTHA UPCHURCH, and JOHN LOWELL UPCHURCH and Natural Guardians Parents KIMBERLY UPCHURCH; UPCHURCH MARTHA IMELDA Respond- Individually, UPCHURCH, LOWELL JOHN ents. No. 27368 July Sanders, Mortensen,
Alverson, Marie & Nelson Taylor, Ellerton, for Vegas, Appellant. Las Burnett, Ltd., Hawley, R. and John Vegas, Las
Lyles, Austin & Respondents.
OPINION Court, Wagner, D. By J.: 9, July On (“Mrs. Martha Imelda respondent Upchurch Upchurch”), age twenty-nine, gave birth to a daughter, respon- Kimberly dent Upchurch (“Kimberly”), at the hospital appel- lant University (“UMC”) Medical Center of Southern Nevada Vegas. Kimberly Las born with palsy. cerebral Roberts, M.D., M.D., Donald and Spoon, Edward two obstetric-gynecology residents employed State of Nevada (“UNR”) and the University of Nevada-Reno School of Medicine, attending were the physicians throughout the and labor husband, delivery. Mrs. and her Upchurch John respondent (“Mr. Lowell Upchurch Upchurch”) (collectively “the Upchurches”), filed complaint with the Nevada Department of Insurance, and Business Industry, Medical-Legal Division of Panel. Screening Kimberly', and Mr. and Mrs. Upchurch were each named Upchurches claimants on The complaint. alleged actors, that the medical mismanagement including various Nevada, Drs. Roberts and the State of and the UNR Spoon, Medicine, School of their daughter’s caused condition. In October the Upchurches voluntarily settled their Medicine, Nevada, the UNR School the State of with claims $150,000— aggregate for an sum Spoon, and and Drs. Roberts (i.e., Mr. and Kimberly, Upchurch, each claimant conjunc- this sum in accepted Upchurches Upchurch). Mrs. settlement compromise, “in full agreement with a release tion the final release consideration for of and as sole satisfaction actions, whatsoever that now claims and demands all discharge of further ...” The release accrue may hereafter exist or deemed or construed as “shall not be that the settlement stated persons, parties liability Upchurches] admission [the but, contrary, any and all such herein entities released denied.” expressly agreement speci- in the settlement parties’ provision Another fied: applica- “cap” funds represent Said settlement 41.035, and in to NRS pursuant the State of Nevada
ble to actions, rights claims or way constitute a release of no parties, have all other undersigned may entities, Dr. limited to other including but not *3 delivery), (the day on the of attending physician Tayengco [UMC], governmental Clark as a County separate of or agents, employees representatives. of their entity, or have any rights they may reserve undersigned expressly from the entity “cap” claim a separate to applicable claim that no is “cap” of Clark or to County this case. with complaint filed an amended
Subsequently, Upchurches Dr. Panel UMC and Screening adding Medical-Legal the Nevada agree- the settlement deleting signed all who Tayengco parties and ment. for filed the instant action the Upchurches In December UMC, seeking a determination judicial relief
declaratory against as to UMC because statutory “cap” that there is no applicable were employees, Roberts and Spoon denied that Drs. UMC separate were entitled to two alternatively, Upchurches that (which County Clark because damage “caps” sets of separate are UMC) and the State of Nevada and funds operates entities. independent governmental and claim- summary judgment for filed a motion The Upchurches right them with provide NRS 41.035 that NRS 41.031 and ing UMC filed its damage caps.” to seek “a second set for and a countermotion motion Upchurches’ opposition defenses affirmative realleged UMC its summary judgment. to additional right had no alleged Upchurches the state. limit from statutory damage having recouped after UMC The district court directed to rebrief the substantive issues and NRS NRS 41.031 41.035 in the form of a regarding motion order, effect, court dismiss. The district then entered summary granting judgment for The written Upchurches. stated: order are not Upchurches] precluded recovering from a sec- [The Clark, ond set statutory caps from County pursuant Therefore, NRS 41.031 41.035. and NRS motion [UMC’s] and,
to dismiss is denied inasmuch as this decision resolves action, the subject declaratory relief decision this shall act as judgment final action declaratory relief in favor of Therefore, Upchurches] and the trial in [the [UMC]. this matter .... is moot order, effect, was, appeals
UMC which a summary judg- ment.
Meanwhile, complaint filed a Upchurches separate alleging institutionally UMC negligent negligent for the dam- birth, ages arising Kimberly’s from and as well out as vicari- ously negligent malpractice for the of the doctors and the nurses in Kimberly’s delivery involved and care. This negligence claim is pending.
DISCUSSION relief Declaratory only (1) justiciable is available if: contro interests, versy (2) exists between with adverse persons party seeking has a declaratory legally relief interest in protectable controversy, (3) issue is for ripe judicial determination. Co., 8, 10, Knittle v. Progressive Casualty Ins. However, whether a determination in an action declaratory judgment is a for the proper matter district court’s discretion and appeal will be disturbed on unless the court district abused that discretion. El Club v. Capitan Fireman’s Ins., 65, 68, *4 426, (1973). Fund 89 Nev. 506 P.2d 428 UMC argues that the issue of the statutory damage limitation is ripe judicial not determination question because the of UMC’s underlying liability remains unresolved. It true that is UMC’s lia However, bility has not been determined. courts must also con sider whether resolution of the speedy might issue promote economy in the litigation to process' might meaningful lead pre Club, 70, settlement. trial El at 506 Capitan 89 Nev. P.2d at Cf. Although there been 429. has no regarding determination UMC’s the liability, the resolution of issue will end the likely controversy
753 Thus, review this the immediate issue parties. judicial between in economy litigation the process. will promote $50,000 Furthermore, statutory the issue whether the dam- entity and governmental limitation to each age separately applies in it to all entities actors or whether applies its public first and of fundamental is aggregate impression one treasury affect the state may profoundly This issue importance. addition, issue will agencies. In budgets of other future might litiga- arise and its resolution forestall likely again case has not been While of UMC in this tion. decided, may controversy between resolution of issue end lengthy a undergoing and could save them from parties trial. expensive part:
NRS 30.040 in relevant provides legal . . . or other relations Any person rights, whose status may any ques- a . . . have determined are affected statute . . . validity arising under the statute tion of construction or rights, legal . . . and a declaration of status or other obtain relations thereunder. rights that immediate review of the suggests
This provision pursuant UMC NRS 41.031 and 41.035 is Upchurches Thus, we did conclude that the district court appropriate. relief. granting declaratory its discretion abuse relief, declaratory court determined that granting In district UMC, though from even were entitled to Upchurches had each claimant the maximum already paid the State of Nevada argues 41.035. that the district allowed under NRS UMC a seek erred could sec- determining Upchurches court 41.031 and limitations under NRS damage ond set of UMC, intended that dam- According legislature 41.035. claimant, wrong rather than “per per on a basis” age cap apply claimant, basis. government actor” per wrong, per “per subject of law to de is question The construction statute Lovett, State, Mtr. Vehicles v. 110 Nev. Dep’t review. novo 476, 1247, (1994). legisla- The intent of the 874 P.2d controlling statutory interpretation. Cleghorn factor ture is 544, 548, Hess, 853 P.2d v.
However,
susceptible
a statute
to more than one inter-
“where
‘in
with
reason and
be
line
what
it should
construed
pretation
Lovett,
legislature
intended.’”
indicate
would
public policy
State,
Dep’t
1249-50
Mtr.
(quoting
at
NRS 41.031 provides, part: relevant
1. The State hereby immunity of Nevada waives its from liability hereby and and liability action consents to have its determined in accordance with the same law rules of as are applied against to civil actions natural persons and corpora- tions, except provided as otherwise NRS 41.032 to 41.038, .... inclusive The State of Nevada further waives immunity the liability from and action of all subdi- political state, the visions of and their must be determined in manner, the same as except provided otherwise NRS 41.038, 41.032 to inclusive .... may 2. brought An action be against under this section the of any State Nevada or political subdivision of the state. Nevada, In any against action of State the action must be brought in the of the name State of Nevada on relation of the commission, particular department, board or other agency of the state whose actions are the .... basis for suit 41.035(1) NRS provides:
An award for an damages in action sounding in tort brought under or against NRS 41.031 a present or former subdivision, officer of employee or the state or any political immune or legislator contractor state arising out of an act or within omission of his scope public employment duties or $50,000, may exceed the sum of of exclusive interest from date of computed judgment, or any may benefit of claimant. An award any not include amount as or exemplary punitive damages.
Neither NRS nor 41.031 41.035 make clear whether a tort plaintiff may recover an award to the equal statutory damage lim- itation from the state and each political subdivision or whether tort plaintiff only limited to one award equal statutory limitation, damage of the regardless number defendant politi- cal ambiguous subdivisions. The statutes are as to proper must, therefore, application damage limitation. We legislative first look to history. legislative The 41.031 history NRS and NRS 41.035 from 1965, enactment, 1973, year original year the first amendments,
of substantive reveals that this issue was not dis- legislature 41.035(1) cussed. In amended NRS adding language: “or present former officer or subdivision, employee political state or immune con- tractor or state out legislator arising act or omission within the scope of his duties or ...” See public employment. Stats., added). ch. (emphasis at 1539 § that, between 1965 amendment reflect on the hearings among lawyers civil question there had been some individual protected whether these statutes as to
the courts *6 official state activities. liability arising out of from tort employees Comm., Assembly Judiciary 260 the on S.B. before Hearings See 15, Gary 1977) (statements of Senator (Nev., Leg. April 59th in Dyer), reprinted Mike Attorney General and Deputy Sheerin (1965), at 21-22. The amendment 185 History of S.B. Legislative that the absolutely clear enacted to make it NRS 41.035 was to lia- from personal public employees insulated individual statutes contention, Thus, language to the contrary Upchurches’ bility. statu- multiple to seek plaintiffs to tort empower was not added limitations. id. There is no indication See tory damage amendment, intended, dam- multiple to permit legislature fact, only In indi- limitations. subject separate awards to age indicates that the idea damage awards multiple rect discussion of different limitation from statutory to the up recoveries multiple However, ques- single rejected.1 action was state actors for legislature. addressed clearly tion was not Therefore, rela- 41.031 and 41.035 in we must consider NRS these and interpreting provisions decisions prior tion to the in this case is whether question implications. public policy actor. As each claim from each state can recover on each person State, 942 v. Dep’t Transp., in Arnesano stated interest. (1997), legitimate the state is protecting P.2d 139 actors, state, through different state determination that the Judicial any one limitations for statutory damage to subject multiple and may incident have a massive single out of a arising action addition, In treasuries. effect state local upon deleterious raises are state actors which individuals or entities determining claims. of tort litigation issues with complex respect hand, in this case recoveries multiple prohibiting On the other will held liability. UMC not be insulates UMC from effectively may it have committed. for misfeasance accountable with certainty in the law that there be some It is important immunity order governmental caps application regard Judiciary hearing, a Nevada Senate Committee 1During a March that, provide in addi be amended to suggested that the two statutes witness state, $50,000) liability (now as limitation of tion to the $25,000. Bryan ques up another Senator employees also be liable state doing argument that would weaken the argument, stating that so tioned this $25,000 recovery. Senate statutory Minutes of the maximum represented the 15; 1977) (statements Comm., (Nev., of Senators March Judiciary Leg. 59th (1965), at Sheerin), Legislative History of S.B. Bryan reprinted Bryan’s Id. with Senator assessment. concurred 7. Senator Sheerin may make about settlements as well litigants proper decisions litigation. as preparation
Virtually all jurisdictions substantially have abolished or abol- governmental immunity. balancing ished the doctrine of In rights public recovery gov- to receive from tortious acts need government agents ernment and with the to protect taxpay- potentially devastating judgments, ers and funds from state public array have governments approaches. used an of different All have been with the problem protecting public concerned treas- ury. jury could a threat to the
Large present treasury. awards state A cap pay on state must for its tor- conduct legitimate tious furthers interest protecting treasury. See Packard Joint School Dist. No. 1983) (Idaho (a Ct. App. statutory cap relates to risk management by effective insurers, public protects entities and their cof- public *7 fers). State, 815, 819, v.
Arnesano Dep’t Transp., 942 P.2d jurisdictions Most have adopted limiting damages statutes government which are recoverable against tortfeasors. Courts have uniformly recognized rights legislative branch of the government to set the of recovery, limits such and such limits have constitutional, overwhelmingly been deemed to be as particularly it to equal relates attacks in the recent protection by as decision in this court Arnesano. The generally courts have reasoned that damage limitation have statutes withstood constitutional attacks as a denial of redress or of as such in impairment rights, rights governments have not existed at all since have past enjoyed immu- nity liability. from recent legal history
In more as cases have these progressed, there been a to tendency liberally has construe the passed statutes by legislature; the state harm greater and inequities by government, greater tendency legislate to judicially around statutory caps. By govern- standards equity, limiting liability mental appears to be unfair cases where the patently wrongs injuries great compared Taking are to limits. an overall immunity, view tort it must be remembered that almost governmental immunity total been retained in large has for part judicial legislative government branches of in carrying out addition, their functions those In government. branches of most agents states of the executive branch from for protect dis- acts. cretionary given almost all have
Although jurisdictions up govern- total which myriad legislative there is a schemes immunity, mental In legislatures immunity. to limit some by have been used in an statutory adopted schemes have been various jurisdictions, government full relief to victims of tortfeasors to attempt provide bodies, indi- recovery from by legislative to petition appropriate or and contribution from employees private vidual officers public tortfeasors. joint States, the United there to be three
Throughout appear types immunity measuring cases for awards standards or claims as follows:2 multiple plaintiffs for standard—This 1. The incident or occurrence” “per recovery by a maximum law for a aggregate standard uses act, regardless of the number of single plaintiffs, tortious claims or defendants involved.
2. The claimant” standard—Permits “per person per each statutory cap person an award of for up having against governmental a valid claim tortfeasor. Some further limit claimant or jurisdictions per per person this by award incident or occur- aggregate damages standard to rence.
3. The claim” standard —Under such standard “per each statutory limit is cause of action cap applicable governmental wrongdoing against each victim or asserted each defendant. government 41.031, NRS interpretation At issue in this case is the immunity and NRS wherein the State of Nevada waives its 41.035, damages. which the limitation on the award for states in NRS
This court has limitation interpreted each claimant. In State 41.035 to to each cause of action apply 690, 691, Webster, (1972), a cat- negligent failing held that the state was install court freeway. entrance to a controlled-access As result guard tle at the *8 failure, into a horse which automobile crashed plaintiff’s of this an brought The wife wandering highway night. on the at was death of her wrongful and for the injuries action for both her own that the wife was entitled to recover This court ruled husband. husband, $25,000 well as of her as wrongful for the death $17,725.84 she suf- injury damages personally for the personal addition, In three relatives of a result of the accident. fered as $25,000 wrongful each on their were allowed to recover decedent claims. This court stated: death in the James L. article, are discussed in some detail 2These standards Validity or Ordinance and Construction Statute Annotation, Isham, J.D., Damages Actual Recoverable in Tort Action Limiting the Kinds or Amount of Unit, Against 4th Governmental 43 A.L.R. 19 758
Although joined complaint, one an for wrongful action death and action injuries by suffered personal same accident are plaintiff separate, distinct inde- .. . different pendent. They may rest on facts and be sepa- rately maintained. Thus, (citations
Id. at P.2d omitted). at 1320 this court allowed damages against to recover plaintiffs the state on a per person claim per basis. Eaton, 705, 708, In State v. 701 Nev. 710 P.2d (1985), this court ruled that the could state be held liable for fail ure to icy warn motorists of known road conditions. As a result failure, of this a husband a vehicle over driving Golconda Summit ran into of a the back semi-truck. Within the were vehicle his wife and baby in the front seat. The collision caused the wife to dis locate her baby ankle crushed the between the mother and the mother, baby dashboard. The died injuries. of head The believing baby asleep, to be handed the child through the window ato highway The patrolman. mother later heard the screaming father that the baby was dead. case,
In the Eaton this court allowed claims against state for personal injury, wrongful mother’s the baby death of a claim for the mother’s emotional distress. 1004, 1012,
In GNLV Falline v. Corp., 823 P.2d SIIS, (1991), 893-94 this court held that its officers and employ- $50,000 enjoy ees of a recovery benefit limit NRS provided 41.035(1). The court stated further that seeking action tort a self-insured or its employer administrator/agent $50,000, subject shall also recovery be total limit of exclu- sive of interest date computed judgment. from the Id. This opinion to limit a appears plaintiff’s recovery ato total of regardless many government of how actors are tortfeasors. State, In Arnesano Dep’t Transp., (1997), truck pickup struck rear of Arnesano’s Ford causing it to out spin of control the freeway. Although the minor, impact was the driver’s ultimately side Ford crashed diameter, into concrete three post feet in feet located 16 off the paved portion freeway. Arnesano died at the scene from severe head trauma. The American Association Highway of State solid, Engineers guide states that non-movable within 30 objects feet of roadway the traveled be protected should a barrier such barrier, guardrail, as a concrete “Jersey” or crash cushions.
The state argued district court denying erred in its motion to because dismiss there was no evidence show that it caused the fatal accident. The striking state contended that support post legally argued foreseeable. *9 of the truck impact pickup cause of the accident was proximate Regarding liability, this court to the rear of Arnesano’s Ford. ruled: legal tortious conduct is otherwise one of the
“One whose result is not relieved from injurious causes of the entire harm the fact that the tortious act of another to the result.” Restatement contributes responsible person (Second) Accordingly, 879 cmt. a we con- of Torts § liability by that the State relieved from the fact clude is not initially of the triggered impact accident was pickup. harm negligent legal
“The actor’s conduct is a cause of (a) a in bringing another if his conduct is substantial factor (Second) 431. Trial about the harm.” Restatement of Torts § would have reduced testimony safety indicates that barriers support post. of the Ford prevented impact striking legally We conclude that fore- support post seeable, supports jury’s and that substantial evidence finding that the State’s failure to install such barriers was death. legal cause of Arnesano’s 822-23, P.2d Id. at at 144. affirmed the court’s analysis,
Based on this this court district wife and two damages award of each for Arnesano’s Their death of wrongful children. claims were based on Thus, damages under NRS permitted Arnesano. this court 41.035(1) on claim basis for a total award of per person per $150,000, attorneys exclusive of fees and costs. state, it that this legal appears
Based on the precedent 41.035, court, has construing consistently plain- NRS allowed recover claim basis. This per person per tiffs to on legislative with the intent as well as the interpretation is consistent 41.035(1), NRS which uses the “in an reading phrases clear “arising as well as the out of an act or (singular), phrase action” language of (again singular). ambiguous omission” Neither the 41.035, conflicting public NRS nor the NRS 41.031 and whether considerations are issue of policy compelling damage multiple can limitations from recover plaintiffs Furthermore, evidence to sug- actors. no direct exists government In view of these legislature ever considered this issue. gest in the restraint practicing judicial facts and this court’s custom of the deci- clear this court reverses legislative guidance, absence of NRS 41.035 allows court and concludes that sion of district action, regardless statutory limitation for each cause of one Pre-Cast, Goldstine Jensen generally number of actors. See *10 1355, (1986). Any P.2d substantial made immunity the waiver of state tort must be “amendments” of legislature.3 JJ., Shearing concur. Young, Rose, J., J., dissenting: agrees, C. with whom Springer, entities, here the State of Nevada We have two tortiously Each claimed liable County of Clark. to be family. majority Under a statute which the con- Upchurch each should “ambiguous,” why entity I see no reason cedes be extent the statute. be held liable to the full the claimants and ambiguity I would construe the favor of (as alluded to in the on a majority) “per read the statute to apply claimant, The statute wrong, government actor basis.” per per subdivi- brought against “any political an action to be permits ’ me that one can sue and recover judgment sion.’ This means to state, county government city government, and a if against to be liable for tortious con- proven independently each has been case, each, duct. in such a could be awarded Judgment, limit. I pay and each would have to toup would, therefore, the trial court. judgment affirm CRIPPENS, Appellant, v. SAV ON DRUG
DIANNA
Respondent.
STORES, a Delaware
Corporation,
No. 27735
July